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St Vincent gov’t to appeal ruling in controversial COVID-19 vaccine mandate

Published:Tuesday | March 21, 2023 | 11:30 AM
The court ruled that the government’s actions in implementing the vaccine mandate constitute a breach of natural justice, contravene the Constitution, were unlawful, procedurally-improper, and wrong.

ROSEAU, Dominica, CMC – Senior Counsel Anthony Astaphan says he expects to file by Wednesday an appeal of the ruling by the court that the COVID-19 vaccine mandate of the St Vincent and the Grenadines government was unlawful.

Last week, High Court judge Justice Esco Henry ruled that the government's actions in implementing the vaccine mandate constitute a breach of natural justice, contravene the Constitution, were unlawful, procedurally-improper, and wrong.

In her ruling, the judge said that the workers who were fired for not taking a COVID-19 vaccine by December 2021 never ceased to be employed by the government and are entitled to their salaries and benefits as well as punitive damages.

But Astaphan, speaking on a radio programme, said it is important for the Ralph Gonsalves administration to appeal the ruling because of its public interest not only in St Vincent but across the region.

“We have advised the government that we believe that there is considerable merit in an appeal. We have also advised the government that in the public interest an appeal is required for the very simple reason that the government needs to know and to have the guidance of a higher court on what needs to be done or should be done, or should not be done when an executive branch of the government and the cabinet are confronted with a crisis like an infectious disease and hospitalise its citizens to say the least.

“The Prime Minister of St.Vincent and the Grenadines has accepted our advice and instructed us to proceed, and proceed we will. We intend by Wednesday the latest to file a notice of appeal and an application for a stay of execution of the judgment so that we can proceed with an appeal as soon as possible,” Astaphan said.

“We ought not to lose sight of the context, which was decisions made to protect lives, the health of public servants and indeed the general health of the public, in the midst of a COVID crisis ravaging the entire world with considerable loss of lives.”

Astaphan said that the case arose in the first instance “because the government of St Vincent and the Grenadines took measures to protect the health of public servants based on the medical advice of the Chief Medical Officer, which as far as I recall was uncontradicted during the trial.”

In her ruling, the judge said that the Commissioner of Police (COP) and the chairman of the Public Service Commission (PSC) admitted that they ceded to the Minister of Health, without debate or challenge, powers that the Constitution gave specifically to them.

“In my opinion, this can only be characterised as the abdication of their jurisdiction and responsibility in favour of the minister and the Minister of National Security.

“This application resulted in this case in what the framers of the Constitution was seeking to avoid, by way of insulating public officers and police officers from the interference in their employment relationship with the Crown by political or other actors,” the judge added.

The court held that the PSC, the COP and the Police Service Commission, by invoking, respectively, Public Service Regulation 31 and section 73 (a) of the Police Act, acted in a procedurally improper manner or misdirected themselves and acted illegally by acting on the minister's directions to them to deem that the claimants had resigned their offices.

Regulation 31 of the PSC Regulations says that a public officer who is absent from duty without being on leave for 10 days is considered to have abandoned his job.

Under the vaccine mandate implemented in December 2021, public sector workers who the Minister of Health had deemed to be frontline workers were required to be vaccinated against the COVID-19 virus.

Any unvaccinated workers who attended work were considered to be absent and after 10 days, they were deemed to have abandoned their job.

Justice Henry said that while there is no direct evidence of direction or control from any person, the COP and the PSC, as well as the Police Service Commission “demonstrated that they did not address their minds to the reality that they were vested with exclusive authority to make rules governing appointment and termination of employment of their employees.”

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